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April 17, 2014

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Attorneys decry loss of work with tort reform

The medical malpractice tort reform measure approved by Nevada voters in 2004 was supposed to reduce malpractice insurance rates and provide protection for both doctors and patients.

Doctors, patients and lawyers, however, insist it has done neither.

What it has done, they complain, is prevent people with legitimate claims from being fairly compensated while making it difficult for some to even pursue litigation. They also point out that malpractice insurance rates have yet to decrease.

Limits on compensation and the added burdens placed on plaintiffs by the measure have caused some lawyers - who previously accepted cases on a contingency basis, meaning they would be paid only if they won - to insist on a retainer before taking a medical malpractice case. Others have simply stopped taking such cases altogether.

"I can't imagine a malpractice case we could handle on contingencies," said Hamilton Moore, a Boulder City attorney. "The upfront commitment shifts a lot of the initial risk to the plaintiff, but that's the only way we can continue to take these cases."

Clark County courts handled about 330 cases a year before the latest tort reform, according to the state Board of Medical Examiners. Last year, the number dropped to 160.

Supporters of the measure contend that reduction demonstrates that people no longer are filing the frivolous lawsuits that they say were the catalyst for spiraling malpractice insurance rates. Opponents, however, argue that the case reduction simply underlines the difficulty that some patients with legitimate claims are having in securing representation.

Moore believes the tort reform measure affects more than just the number of cases filed. The $10 million "Keep Our Doctors in Nevada" campaign that accompanied the 2004 initiative, he said, has poisoned jury pools against plaintiffs.

"People are afraid if they hand out a large judgment, even if it's fair, they will lose their doctor," Moore said.

Victoria Gomez, a Moore client who filed a malpractice suit after a botched hysterectomy in 2001, believes she is a prime example of someone who got shortchanged by a jury.

Gomez, who was 36 at the time of the operation, had just moved to Las Vegas and made an appointment with a local gynecologist. Although she had been experiencing pain during menstruation, she went to the doctor primarily for a checkup and to register as a new patient.

After the examination, the doctor recommended the hysterectomy, she said.

"She was my doctor - I trusted her," Gomez said.

During the operation, there were complications that Moore contends occurred because the doctor suffered a loss of grip strength because of a pre-existing medical condition. Moore produced documents in court that showed that the doctor was aware of the condition at the time of the surgery.

Gomez had to undergo a second procedure to correct the problem several hours later.

When Gomez left the hospital after a six-day stay, she was still on a catheter. Even after a follow-up visit with the doctor, she continued to experience complications, including pain and uncontrollable urination.

Gomez went to another doctor who discovered more problems related to the surgeries. She ultimately underwent four procedures, including surgery to repair a damaged ureter.

As a result of the operations, Gomez has extensive scar tissue that she said makes intercourse extremely painful. Gomez said she also experiences sharp pains in her side and urinates up to 16 times daily.

In February, a Clark County jury ruled in her favor in a lawsuit and awarded her $200,000.

But Moore, who has been a malpractice lawyer for 20 years, estimated that Gomez likely would have been awarded at least $2 million if the case had been heard before the 2004 reform took effect.

Dr. Ikram Khan, president of the medical consulting firm Quality Care Consultants, disagrees.

"If a jury is presented with all the facts and does not allow emotion and rhetoric to get in the way, (it) will come to a fair conclusion," Khan said.

Gerry Gillock, another local lawyer who handles malpractice cases, said the tort reform is preventing many people from even getting their case before a jury.

"I have filed five cases since Jan. 1, and by this time last year I had probably filed 15 or more," he said.

Gillock said while he still takes some cases on a contingency basis, he is one of the few attorneys in the Las Vegas Valley who does.

A New Yorker looking to file a suit because he claims his father has received negligent care at a local hospital has found that to be so.

The man, who asked not to be named because his father remains in the hospital, said he has been turned down to date by at least five lawyers.

"They all said the same thing - that they used to take malpractice cases but it's just not profitable for them to do so anymore," he said.

But Khan, a retired Las Vegas surgeon who served on the state's medical liability reform task force, said there is no evidence to back up that claim.

"California, which has been described as the gold standard for tort reform, has no evidence that any individual has been deprived of representation in a legitimate claim for damages," Khan said.

"We have repeatedly asked for data that proves otherwise, but as yet no one has provided it."

California passed a tort reform law in 1975 that included limited noneconomic damage amounts for victims and other changes that have become the blueprint for other states' legislation.

In Nevada, the medical malpractice issue reached a crisis stage in December 2001, when St. Paul Insurance Co., Nevada's largest medical malpractice insurer, announced that it was pulling out of the state. Other insurance companies either followed suit or dramatically raised their rates.

As a result, many Nevada doctors were left without access to insurance.

Khan credits Gov. Kenny Guinn with averting a disaster by establishing the Medical Liability Association of Nevada, a nonprofit association formed to provide insurance coverage for physicians.

"If it had not been for the governor's intervention, we might have had half of our physicians leave the state at that time," Khan said.

In reaction to that situation, Guinn developed a plan for tort reform that was passed unanimously in a special legislative session in June 2002.

As malpractice insurance rates continued to rise, however, broader reforms - supported with a huge financial push from Nevada doctors - were placed on ballot and approved by voters in 2004.

One of the most significant changes in the initiative established a $350,000 per-case limit on noneconomic damages.

In addition to limiting potential monetary awards, the measure also forces plaintiffs to prove the extent to which each defendant in a case is responsible.

To do that, plaintiffs often must hire several expert witnesses, further adding to the cost of proving a claim.

Previously, plaintiffs could rely on a single witness testifying that negligence had occurred.

Khan, though, contends that the new standard merely puts the same burden on plaintiffs that has always applied to doctors.

The predicted reduction of malpractice insurance rates touted as a benefit from 2004 reform has not materialized.

Although rates have stabilized, insurers say they are waiting to see whether the new law withstands possible legal challenges before lowering rates.

Even the Medical Liability Association of Nevada raised its rates 14.8 percent last year. The association insures more than 900 Nevada doctors.

Another insurer, the Medical Protective Co., raised rates 9 percent last year after initially requesting a 16 percent increase.

Gomez, meanwhile, still has not seen any of the money in her case. The verdict has been appealed, and Moore said she may have to wait up to 2 1/2 years for it to be resolved.

Gomez admits there are times when she is discouraged but knows the matter is out of her hands.

"What can we do but wait?" she said.

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